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High Country Conservation Advocates v. United States Forest Service

United States District Court, D. Colorado

September 11, 2014

HIGH COUNTRY CONSERVATION ADVOCATES, WILDEARTH GUARDIANS, and SIERRA CLUB, Plaintiffs,
v.
UNITED STATES FOREST SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, UNITED STATES BUREAU OF LAND MANAGEMENT, UNITED STATES DEPARTMENT OF THE INTERIOR, DANIEL JIRÓ N, in his official capacity as Regional Forester for the U.S. Forest Service's Rocky Mountain Region, SCOTT ARMENTROUT, in his official capacity as Supervisor of the Grand Mesa, Uncompahgre, and Gunnison National Forests, and RUTH WELCH, in her official capacity as the Bureau of Land Management's Colorado State Office Acting Director, Defendants, and ARK LAND COMPANY, INC., and MOUNTAIN COAL COMPANY, L.L.C., Intervenor-Defendants

For High Country Conservation Advocates, formerly known as High Country Citizens' Alliance, WildEarth Guardians, Sierra Club, Plaintiffs: Jessica Frances Townsend, Edward Breckenridge Zukoski, Earthjustice Legal Defense Fund-Denver, Denver, CO.

For Ruth Welch, Defendant: David B. Glazer, U.S. Department of Justice-CA-San Francisco, Environment and Natural Resources Division, San Francisco, CA.

For United States Forest Service, Bureau of Land Management, Daniel Jiron, in his official capacity as Regional Forester for the U.S. Forest Service's Rocky Mountain Region, Scott Armentrout, in his official capacity as Supervisor of the Grand Mesa, Uncompahgre, and Gunnison National Forests, Helen Hankins, in her official capacity as the Bureau of Land Management's Colorado State Office Director, Defendants: David B. Glazer, LEAD ATTORNEY, U.S. Department of Justice-CA-San Francisco, Environment and Natural Resources Division, San Francisco, CA; John S. Most, U.S. Department of Justice-DC-7611, Environment & Natural Resources Division, Washington, DC.

For United States Department of the Interior, Defendant: David B. Glazer, U.S. Department of Justice-CA-San Francisco, Environment and Natural Resources Division, San Francisco, CA; John S. Most, U.S. Department of Justice-DC-7611, Environment & Natural Resources Division, Washington, DC.

For United States Department of Agriculture, Defendant: David B. Glazer, LEAD ATTORNEY, U.S. Department of Justice-CA-San Francisco, Environment and Natural Resources Division, San Francisco, CA.

For Ark. Land Company, Mountain Coal Company, Intervenors Defendants: Scott Pringle Sinor, LEAD ATTORNEY, Stephen D. Bell, Dorsey & Whitney, LLP-Denver, Denver, CO; Michael Robert Drysdale, Dorsey & Whitney, LLP-Minneapolis, Minneapolis, MN.

Page 1263

ORDER

R. Brooke Jackson, United States District Judge.

On June 27, 2014, this Court issued an order finding that the Forest Service and Bureau of Land Management (collectively " federal defendants" ) failed to comply with the National Environmental Policy Act (" NEPA" ) in three interrelated agency actions: the promulgation of the Colorado Roadless Rule with an exemption for the North Fork Valley, the issuance of lease modifications to permits held by intervenor-defendants Ark. Land Company, Inc. and Mountain Coal Company, L.L.C. (collectively " Arch Coal" ), and the approval of an Exploration Plan authorizing road building and drilling in the lease modification area. ECF No. 91. The Court postponed its decision on the appropriate remedies for these violations until the parties had a chance to confer and, if necessary, submit additional briefing on the topic. The parties have since filed their briefs, and the Court is prepared to issue a final order in this administrative appeal.

I. Applicable Law

Vacatur is the normal remedy for an agency action that fails to comply with NEPA. See 5 U.S.C. § 706(2)(A) (directing reviewing courts to " hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" ); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (" In all cases agency action must be set aside if the action was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or if the action failed to meet statutory, procedural, or constitutional requirements." ).

The APA does not, however, deprive reviewing courts of traditional equitable powers when fashioning a remedy. See 5 U.S.C. § 702 (noting that nothing in the Administrative Procedure Act deprives reviewing courts of the power to apply equitable factors to its remedies analysis); see also Ronald M. Levin, " Vacation" at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291, 374-75 (2003) (discussing the importance of remand without vacation as a remedy in administrative appeals, but noting that it is a departure from the norm and urging caution in its use). Some circuits

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employ a two-step test to determine whether equity counsels against vacatur, although it appears that the Tenth Circuit has not specifically addressed whether such a test applies in this circuit. See, e.g., Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51, 300 U.S.App.D.C. 198 (D.C. Cir. 1993) (weighing the ...


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